Why advance decisions and LPAs are increasingly crucial

heart in handsMaking safeguards for our future health and welfare has never been more important. Kate Norris and Amy Lloyd explain how we should be prepared.

Making medical decisions is difficult enough when you’re unwell, but to make a medical choice in advance of illness is by its nature unpredictable.

For those who have a health and welfare lasting power of attorney (LPA) in place, their attorney has the flexibility to make such medical decisions on their behalf, if the need arises. In addition, an advance decision (sometimes referred to as a living will), is a legal document that can be used to refuse consent to life-sustaining treatment.

With advances in medical science, keeping people alive with varying degrees of pain and consciousness raises issues of whether that person would wish to prolong their life. If there is an LPA, an advance decision, or if both documents are in place, they will be prepared with authority to assist individuals and families in these difficult circumstances.

A case in point

Miles Kemp, a 29-year-old who sustained a traumatic brain injury in a snowboarding accident, was left in a minimally conscious state, partially-sighted, doubly incontinent and in severe pain for five years until his death.

Miles’s mother had recalled that he would never want to be sentient but unable to communicate. However, as no advance decision or LPA had been made by Miles, his mother was unable to withdraw consent to life-sustaining treatment.

The law in its present state requires that if a family is faced with the suffering of a loved one, such as in this case, they must rely on either an advance decision or a health and welfare LPA. Without either of these documents, they would have to apply to the Court of Protection and undergo a lengthy and costly process.

Advance decisions

An advance decision (living will) is a legal document that will be examined in the event of loss of capacity. It records the individual’s wishes, including the ability to refuse life-sustaining treatment, ‘do not resuscitate’ wishes, and wishes about the geography of treatment.

Many people will make a living will either at the same time as a health and welfare LPA, or afterwards. However, the timing of both documents is important, as altering your LPA at a later date can invalidate your living will, meaning that you will need to make a new one.

Important points about LPAs

  • Attorneys have power to refuse consent to life-sustaining treatment.
  • An LPA is similar to insurance, in that we hope it will not be needed, but the consequences of being without one can be far-reaching.
  • There are safeguards that prevent abuses of power by attorneys.
  • The Office of the Public Guardian is the governing body that all LPAs must be sent to if they’re to be registered.
  • Your own wishes can be recorded in your LPA to suit you, as an individual.
  • You can add replacement attorneys if one or more of your ‘first’ attorneys cannot act.
  • The cost of registration of LPAs has recently been reduced to £82 per document (at the time of writing).

An ageing population and medical advances

There are many reasons why advance decisions and LPAs are increasingly crucial; one being the issue of an ageing UK population, which will inevitably put strain on doctors who are reluctant to have these difficult conversations or refer patients to a solicitor. However, as the British Medical Journal observes, ‘many older people are perfectly willing to talk about the limits of treatment’.

The problem that we face has been exacerbated by increasingly sophisticated medical advances and the unexpected early losses of capacity, where younger patients are sustained at a standard of life that they would not accept. The lack of capacity to make decisions in these circumstances can be devastating for the family.

With this considered, advance decisions and LPAs are more important than ever right now. Capacity cases of young adults suffering due to tragic accidents where there is no legal authority to enact the individual’s wishes denies families, friends and victims the closure required to return to ordinary life.

To quote Lu Spinney, Miles Kemp’s mother, in April 2016: “Medical skills and technology are now so advanced that a life can be ‘saved’ – as in, death avoided – but they are not yet able to give the person back a meaningful life afterwards.”

It may seem an odd conversation to have with younger relatives, and stranger still to approach a solicitor to discuss this ‘early’, but a living will and/or an LPA is the only way to express your wishes if you are no longer able to, irrespective of age.

Legally, we must endeavour to guard against this mounting issue to ensure the wishes of our loved ones are, no matter the circumstances, afforded ‘a meaningful life’.

About the author

By Amy Lloyd, associate, and Kate Norris, trainee solicitor, of the private wealth team at Wright Hassall.

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